V. S. BAJPAI, J. Appellant Balbir Singh has preferred this appeal against the judgment and order dated 20-4-1981 passed by Sri B. K. Srivastava, the then III Additional Sessions Judge, Mainpuri, in S. T. No. 622 of 1979, State v. Balbir, convicting the appellant under Section 395 IPC and sentencing him to undergo rigorous imprisonment for a period of four years. 2. The prosecution case, in brief, was that informant Rajvir Singh, his brother Shyam Singh and their father Badam Singh were sleeping in their gher which is towards west of the village. Smt. Bhawani, mother of the informant, Smt. Dakhshri wife of the informant and Smt. Kesar Shri, wife of Rajpal Singh were sleeping along with the children inside the house. In the verandah a lantern was burning. On 22-3- 1979 at about 11. 30 p. m. they heard the cries of ladies coming from their house. They got up and ran towards the house raising alarm. When they reached near the house they saw a dacoit over the roof who threatened to shoot them if they proceeded any further. The informant, his brother and their father raised alarm in the village on which villagers Mahavir Singh and Sanehi Lal opened fire. The dacoit who was standing on the roof fired towards them. Meanwhile, Hakim Singh, Dori Lal, Layak Singh, Rameshwar, Saudan Singh and many other villagers assembled and went in the eastern gher. Layak Singh ignited fire by lighting up bajra straws on the place where Holi is burnt. The informant and the villagers saw the faces of the dacoit, who were 14 or 15 in number, in this light. The dacoits looted the property for about one and a half hours and also beat the wife of the informant with lathi and danda Jal Devi, wife of Ram Singh sustained fire-arm injury by the shots fired by the dacoits. Having committed the dacoity the dacoits went away towards east, firing in the air. The informant and the witnesses recognized the appellant a resident of the same village and known to them from before. Civil Litigation was going on between the informant and Achchey Lal, father of the appellant. It was on account of this enmity that the appellant invited the dacoits to commit this dacoity. 3. Informant Rajvir Singh got the report written by one Brijendra Singh and lodged it at the police station. Civil Litigation was going on between the informant and Achchey Lal, father of the appellant. It was on account of this enmity that the appellant invited the dacoits to commit this dacoity. 3. Informant Rajvir Singh got the report written by one Brijendra Singh and lodged it at the police station. On the basis of this report, the Chik FIR was scribed and the case was registered. Investigation was taken up by the then S. O. , Moti Lal (P. W. 5 ). He recorded the statements of the witnesses and after inspecting the place of occurrence, prepared the site plan. The informant handed over the list of the looted property to him. He also took ash of the burnt bajra stalks and sealed it vide memo Ext. Ka-7. He took piece of plaster, an empty cartridge and axe in his custody and sealed them separately and prepared their memos. He saw the torches of the witnesses and lantern of the informant and gave them in their supurdagi after preparing the memos. 4. The appellant was arrested the next day. During the investigation, the complicity of co-accused Suresh came into light and he was arrested and made baparda. His test identification took place on 6-7-1979. After completing the investigation, he submitted the charge-sheet against the appellant and co-accused Suresh. 5. A charge under Section 395/397 IPC was framed against both the accused to which they pleaded not guilty. Appellant Balbir stated that the informant and others had obtained a forged and fictitious agreement to sell from his aunt, Smt. Champa Devi. After her death, this agreement was challenged by the father of the appellant and ultimately the appellant and others could not get that land. It is on account of this enmity that he has been falsely implicated in this case. Co-accused was acquitted of the charge framed against him on the ground that he could not be identified by the witnesses. Appellant Balbir did not lead any evidence in his defence. 6. The prosecution examined 6 witnesses in all to establish the guilt of the appellant. Out of these witnesses, S. O. Hoti Lal (P. W. 5) and G. C. Saxena (P. W. 6) the Special Executive Magistrate who had conducted the test identification of co-accused Suresh, are formal witnesses. Informant Rajvir Singh, Dori Lal, Hakim Singh and Mahavir Singh are the witnesses of fact. Out of these witnesses, S. O. Hoti Lal (P. W. 5) and G. C. Saxena (P. W. 6) the Special Executive Magistrate who had conducted the test identification of co-accused Suresh, are formal witnesses. Informant Rajvir Singh, Dori Lal, Hakim Singh and Mahavir Singh are the witnesses of fact. Relying upon this prosecution evidence the trial Judge convicted the appellant and passed the aforesaid sentence. 7. I have heard the learned Counsel for the appellant as well as A. G. A. and have perused the record. On thoughtful consideration of the arguments made at the bar, I am of the opinion that the finding of conviction recorded by the learned Additional Sessions Judge against the appellant is not at all sustainable and the appeal deserves to succeed. 8. It may be pointed out that informant Rajvir Singh, witnesses Hakim Singh and Balbir Singh and the appellant are residents of the same village. Informant has also admitted that a litigation is going on between the appellant and the family of the informant. This admission of the prosecution witnesses clearly shows that the appellant was known to the informant and the witnesses from before. In the FIR it is mentioned that the appellant on account of the enmity had called unknown persons from other villages to commit dacoity. If that be so, it is unconceivable that the appellant would himself take part in the commission of the dacoity and that too without covering his face so as to conceal his identity. There is a plethora of case law on this point. There is positive evidence that the appellant had not covered his face at the time of dacoity. In other words, he participated in the dacoity with open face without taking any precaution to conceal his identify. In case he was of a hazardous character and a hardened criminal, it can be said that he did not make any attempt to conceal his identity. But then there was absolutely no need for him to have invited unknown dacoits from other villages to commit the dacoity. Unknown dacoits from other villages were obviously called by the appellant so that his complicity in the crime should not come into light. And yet he is said to have taken part in the commission of dacoity without making any effort to conceal his identity. Unknown dacoits from other villages were obviously called by the appellant so that his complicity in the crime should not come into light. And yet he is said to have taken part in the commission of dacoity without making any effort to conceal his identity. In the case of Ram Shankar and others, AIR 1956 SC 441 , three dacoits belonged to the informants village and three others belonged to the adjoining village. All the six dacoits were known to the informant party. The High Court had disbelieved the evidence regarding the dacoits belonging to the same village on the ground that if at all they would come to commit dacoity in the village they would take ample precaution to cover their faces. The Apex Court was of the view that this argument was also available to the persons belonging to the adjoining village. Thus, in view of the settled principle of law the learned Additional Sessions Judge committed a grave illegality in convicting the appellant and sentencing him. 9. Secondly, it is worthy to note that no specific weapon or role has been assigned to the appellant in the FIR. Even the informant and the witnesses do not say a single word in their statements that the appellant was armed with any particular weapon or that he had taken any specific part in the commission of dacoity or in causing hurt to the inmates of the house. 10. On the other hand Dori Lal (P. W. 2) who had not supported the prosecution case, stated that appellant Balbir was standing by his side at the time of dacoity. The omission of the informant and the witnesses to specify any role or weapon to the appellant makes the entire prosecution story doubtful and unbelievable. It sounds to be unnatural that the appellant would have participated in this crime by his mere presence. Had he the intention of getting a dacoity committed in the house of the informant, he would have done some overt act in the commission of the crime. There could hardly be any point of his mere physical presence without any weapon and without doing any overt act in the actual commission of the crime. 11. There is yet another infirmity in the prosecution case. There could hardly be any point of his mere physical presence without any weapon and without doing any overt act in the actual commission of the crime. 11. There is yet another infirmity in the prosecution case. Though informant Rajvir Singh (P. W. 1) has stated that the dacoits had beaten Smt. Dakhshari, his wife, and Smt. Jal Devi had sustained fire-arm injuries, but there is no medical examination reports of these injured on the record. This facts, by itself goes to show that no such incident had taken place and the learned Additional Sessions Judge committed an error in holding that since the learned Counsel for the accused (Balbir) did not dispute the factum of dacoity, hence he had no difficulty in accepting that there did take place a dacoity at the house of the informant. Probably he lost sight of the fact that the prosecution has to stand on its own legs. It was for the prosecution to establish beyond all reasonable doubt that the dacoity had actually occurred. Simply because the appellant did not or was not in a position to dispute that the dacoity had taken place, it was not proper for the trial Judge to have held that the dacoity, as alleged by the prosecution had taken place. 12. For the above reasons I come to the conclusion that the finding of conviction and sentence recorded by the learned Additional Sessions Judge against the appellant cannot be sustained. 13. I accordingly allow the appeal and set aside the conviction and sentence recorded by the trial Judge against the appellant by the impugned judgment. The appellant is hereby acquitted. He is on bail. He need not surrender. His bail bonds are cancelled and the sureties are discharged. Appeal allowed. .